Introduction
The Serious Crime Act 2007 represents a significant piece of legislation in the United Kingdom, aimed at disrupting and preventing serious criminal activity. A core aspect of this Act involves the reform of inchoate offences, those actions that precede the commission of a substantive crime, specifically conspiracy, attempt and inchoate complicity. The Act also introduces Serious Crime Prevention Orders (SCPOs) as a preventative measure. These technical principles operate within a framework designed to allow law enforcement to intervene at an earlier stage, while still respecting the boundaries of individual liberty. Key requirements include demonstrating intent to commit a crime or facilitate criminal activity, alongside actions deemed more than preparatory toward that end. The Act, therefore, seeks to strike a balance between proactive law enforcement and the preservation of civil liberties, requiring careful interpretation and application. This article will examine the key provisions of the Serious Crime Act 2007, particularly in relation to inchoate offences and SCPOs, exploring the legal frameworks, practical implications, and academic discourse surrounding its implementation.
Reform of Inchoate Offences
The Serious Crime Act 2007 made significant alterations to the law governing inchoate offences. These are crimes that are incomplete, existing only as preparatory steps towards a more significant illegal act. The primary offences dealt with are attempt, conspiracy, and the newly created inchoate complicity. Each has unique components that are essential in establishing criminal liability. The legislative goal is to criminalise conduct sufficiently proximate to substantive offending, without creating undue criminalisation of preliminary actions.
Attempt under the Criminal Attempts Act 1981
Section 1 of the Criminal Attempts Act 1981, which is influenced by the Serious Crime Act 2007, defines the actus reus of an attempt as an act that is more than merely preparatory to the commission of the offense. The mens rea, on the other hand, is an "intent to commit an offense." The interpretation of these requirements by the courts has been a matter of considerable discussion. The current legal position often imposes a restrictive standard for the actus reus, requiring actions to be practically on the verge of the completed crime. Case law such as Gullefer [1], Geddes [2] and Campbell [3] highlight this stringent standard, where even clear expressions of intent were insufficient for a conviction when the physical act itself had not begun. In Geddes, a man with materials for kidnapping found near a school, and in Campbell, a man approaching a post office with robbery in mind were not liable for attempt as they had not yet begun the offenses. This restrictive approach, however, has been criticised by legal academics such as Rogers, who point out that it can allow clearly blameworthy defendants to avoid liability. From a subjectivist viewpoint, this is problematic as the intent to commit the substantive crime was clearly present. Moreover, it also frustrates the purposes of law enforcement by limiting police intervention to the latest possible moment before a substantive offense, potentially putting potential victims at further risk.
Proposals to remedy the restrictiveness of the definition of attempt have included the creation of a separate crime of criminal preparation. The Law Commission suggests implementing a proximity test, where actions will be regarded as part of the execution of a plan, but the offence of attempt would be limited to the "last act needed to commit the offense". This solution aims to address situations where offenders "lie in wait," but it is still regarded as not covering sufficiently early conduct by some. Rogers argues for a wider crime of preparation, encompassing "any conduct which contributes to the possibility of offending," while broadening the scope of attempt to match. This raises objectivist concerns as it may criminalize innocent acts without obvious elements of harm. The Law Commission’s approach is considered a more balanced solution, given its practical scope that balances law enforcement needs with individual autonomy.
The mens rea of an attempt has equally presented issues regarding the state of mind as to the circumstances of the crime. The Court of Appeal’s decision in Pace and Rogers [9] required intent even when recklessness or a lesser mens rea was adequate for the substantive offence. In Khan [10], the Court of Appeal established that a standard of recklessness toward circumstances could suffice for attempts. This was partially undermined by AG’s Reference (No. 3 of 1992) [11] which suggested the missing element test, where recklessness as to existing consequences was adequate if intention to missing circumstances was proved. It remains a complex issue, as these views do not align with Section 1(1) of the Criminal Attempts Act, which requires intent toward the consequence. Some legal scholars like Simester defend the Pace approach, suggesting that an intent requirement is true to the meaning of "attempt." Conversely, Ormerod and Laird argue it is excessively restrictive, making it difficult to prosecute crimes like rape, where proving intent as to a lack of consent can be difficult. Ultimately, Khan is a more desirable approach, arguing that a higher standard of mens rea for attempt is unneeded since proof of intent to the consequences is already a prerequisite.
Conspiracy Under the Criminal Law Act 1977
Conspiracy, another inchoate offence, is addressed in section 1 of the Criminal Law Act 1977. Here, the primary issue rests with the mens rea, especially whether a desire that the agreement is carried out needs to be part of it. The 1977 Act itself creates ambiguity by removing a clause requiring such an intent. The decision of Anderson [12], states intent to carry out the agreement was not necessary, provided that parties intend to carry out acts. This ruling was doubted by the Privy Council in Yip Chiu Cheung, where it was held that every alleged conspirator must intend the agreement to be carried out. Anderson poses considerable problems, for both parties may not have an intention for the agreement to be implemented. The Court of Appeal has also consistently not followed it, thereby bringing into question whether it can still be viewed as good law. Moreover, Anderson’s requirement of intent to play some part is overly restrictive, as not all conspirators need to take part.
The decision in Siracusa [13], however, made it clear that participation in conspiracy can be passive. Therefore, the identification of the point of criminalization in conspiracy is uncertain, but it is most likely that Anderson is misplaced. There is more coherence in the approach taken in Yip Chiu Cheung, where intent is required in relation to the consequences of the agreement.
Inchoate Complicity: Serious Crime Act 2007 Part 2 Offences
Part 2 of the Serious Crime Act 2007 introduced new inchoate complicity offences such as assisting or encouraging the commission of a substantive crime. Section 46 deals with assisting or encouraging another in the commission of a crime, where the defendant is uncertain as to which offence will be committed. The mens rea for an offence under s.46 is that the defendant must believe his or her act will assist or encourage the commission of one of the offences, and that one of them will be committed. Sadique [14] clarified the legal interpretation of Section 46, by overruling an earlier 2011 interpretation of the same case. The 2011 ruling held that an indictment under s.46 should be particularized into distinct counts relating to each of the possible offences, which would have rendered s.46 obsolete. However, the 2013 case of Sadique clarified that a belief in a particular offence need not be proved, and the courts held that setting aside s.46 by rendering it useless was not a desired legal outcome. Therefore, s.46 was brought into a position suitable for dealing with situations where the defendant is uncertain about the offense to be committed and this is not unduly removed from the commission of the principal offence. The legal limits are, thus, placed at a reasonable position for inchoate complicity.
Double inchoate offences are permitted, thereby showing the law's approach to guilt stemming from intent rather than actual harm. Offences under ss. 44-46 of the Serious Crime Act can be committed in situations where an individual assists or encourages an attempt, and it is also possible to attempt or conspire to commit these offences. Furthermore, the impossibility of a substantive offence is no defence. s.1(2) of the Criminal Attempts Act 1981 and s.1(3) of the Criminal Law Act 1977 state that once the requisite actus reus and mens rea have been proved, the possibility of the offense is immaterial. This approach again emphasizes a subjectivist theory of attempts, looking to the mental state of the defendant, rather than any harm caused.
Serious Crime Prevention Orders (SCPOs)
Part 1 of the Serious Crime Act 2007 introduces Serious Crime Prevention Orders (SCPOs), aiming to protect the public by preventing, restricting or disrupting involvement in serious crime. These orders can be imposed by the High Court or the Crown Court and are similar to control orders that are used in counter-terrorism. An SCPO may be imposed where the court is satisfied that an individual has been involved in serious crime and that the SCPO is necessary to disrupt the person’s involvement and protect the public.
Defining Serious Crime
For orders made in England and Wales, a "serious offense," is defined by section 2 of the Act. This includes offenses specified in Part 1 of Schedule 1, and any other offence that the court deems sufficiently serious. The offenses enumerated in Schedule 1 include drug offences under the Misuse of Drugs Act 1971, offences under the Customs and Excise Management Act 1979 (such as the importation of prohibited goods), and under the Criminal Justice (International Co-operation) Act 1990, such as using a ship for illicit drug trafficking. Scotland and Northern Ireland have their own provisions for defining serious crime in Sections 2A and 3 of the Act.
Scope of SCPOs
Section 5 of the Act outlines the broad scope of provisions that an SCPO can include, such as restricting or prohibiting financial, property or business dealings, or types of agreements, or the provision of goods and services. The order’s provisions can be broadly tailored to specific threats that individuals pose.
Safeguards
Part 1 of the Act also outlines general safeguards applicable to SCPOs. Under section 6, an individual has to be above 18 years old, section 9 allows parties to make representations and under section 16 an SCPO has to mention when it comes into effect and when it ceases to be in effect. The law creates a framework of accountability by introducing these safeguards.
Other Preventative Measures
The Serious Crime Act 2007 includes other preventive and disruptive measures for serious crime in Part 3. The Act contains provisions for preventing fraud, amends the Proceeds of Crime Act 2002, and extends police powers to stop and search. These provisions, together, enhance the abilities of authorities to prevent and respond to a range of criminal activities.
Prevention of Fraud
Chapter 1 of Part 3 makes specific provision for preventing fraud. The Fraud Act 2006 replaced numerous offences under the Theft Acts of 1968 and 1978. Before 2006, there was a lot of criticism regarding the overparticularisation of offenses, as it lead to confusion amongst prosecutors. Section 1 of the Fraud Act created a new offense of fraud that can be committed by way of false representation (s2), failure to disclose information (s3) and abuse of position (s4). The new act also criminalized the possession of articles for fraud (s6), and the making and supplying of articles for fraud (s7). The central change was made from conduct used to deceive the victim, to the intent to make a gain or cause a loss irrespective of the victim acting upon it, therefore making the defendant liable. Although the 2006 Act improved the law by simplifying the area, some academics such as Lord Lyell argued that there is still a lack of clarity on what is to be regarded as a legal duty that triggers liability. There is, therefore, room for further development of the fraud provisions.
Amendments to the Proceeds of Crime Act 2002
Chapter 2 of Part 3 amends the Proceeds of Crime Act 2002, transferring certain powers to the Serious Organised Crime Agency. The focus is to undermine criminal activity through forfeiture. The POCA 2002 is often regarded as an important tool against money laundering, creating a structure of financial penalties, thus undermining the possibility of the criminal enjoying the proceeds of crime.
Extension of Stop and Search Powers
Finally, Chapter 3 extends police stop and search powers for dangerous instruments and offensive weapons without reasonable suspicion. This is designed to detect and prevent crime at an early stage, although it has been subject to criticisms regarding its impact on civil liberties, disproportionate impact on ethnic minorities, and overall effectiveness.
Conclusion
The Serious Crime Act 2007 represents a comprehensive effort to tackle serious crime in the United Kingdom. It introduced considerable amendments to inchoate offences. While the legislative goal is to provide tools for prevention and disruption of criminal activity, the law must uphold civil liberties. The legal limits are often difficult to identify because of the contradictory nature of case law, in particular with regards to the mens rea and actus reus requirements for attempt and conspiracy. With respect to inchoate complicity, Section 46 has been brought to a sensible position. Sadique [14], is a ruling that can help in tackling situations where the defendant is unsure about the crime to be committed.
The use of SCPOs and the various preventative measures introduced by the Act indicate a preference for proactively targeting organized crime. This approach requires the state to exercise discretion in a responsible way, as highlighted in Sadique [14], and ensure the provisions are used in accordance with the law. The success of the Serious Crime Act 2007 lies not only in its legislative reach but in its implementation, which must respect the complexities of the law, individual rights and the specific circumstances surrounding each case.
References
[1] Gullefer [1990] 1 WLR 1063 [2] Geddes (1996) 160 JP 697 [3] Campbell (1991) 93 Cr App R 350 [4] J Rogers, “The Codification of attempts and the case for ‘preparation’” [2008] Crim LR 937 [5] Law Commission, Conspiracy and Attempts. Law Com No.183 (2007) [6] Ibid. [7] Ibid. [8] Ibid. [9] Pace and Rogers [2014] EWCA Crim 186 [10] Khan [1994] 1 WLR 409 [11] AG’s Reference (No. 3 of 1992) [11] Smith and Hogan’s Criminal Law, 14th Ed [12] Anderson [1986] AC 27 [13] Siracusa Herring, Criminal Law: Text Cases and Materials [14] Sadique [2013] EWCA Crim 1872 [15] Graham Virgo, “Encouraging or Assisting More than One Offence” Archbold Review, Issue 2, 12 March 2012 [16] D Ormerod and R Fortson, ‘The Serious Crime Act 2007: The Part II Offences’ [2009] Crim LR 389 [17] Criminal Attempts Act 1981, s.1(4)
